Citation Nr: 1442007
Decision Date: 09/19/14 Archive Date: 09/30/14
DOCKET NO. 09-11 230 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California
THE ISSUE
Entitlement to service connection for a skin disability of the left foot.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
D. Whitehead, Counsel
INTRODUCTION
The Veteran served on active duty from August 2000 to December 2003.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.
The Veteran testified before a Decision Review Officer during a hearing held at the RO in July 2009. A transcript of the hearing has been associated with the claims files.
The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA.
FINDING OF FACT
Before the Board promulgated a decision in this appeal, the Veteran died in May 2014.
CONCLUSION OF LAW
Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of this claim at this time. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2013); but see Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008).
REASONS AND BASES FOR FINDING AND CONCLUSION
Unfortunately, the Veteran died during the pendency of the appeal. As a matter of law, veterans' claims do not survive their deaths. Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996); Smith v. Brown, 10 Vet. App. 330, 333-34 (1997); Landicho v. Brown, 7 Vet. App. 42, 47 (1994). This appeal on the merits has become moot by virtue of the death of the Veteran and must be dismissed for lack of jurisdiction. See 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2013).
In reaching this determination, the Board intimates no opinion as to the merits of this appeal or to any derivative claim brought by a survivor of the Veteran. 38 C.F.R. § 20.1106 (2013).
The Board's dismissal of this appeal does not affect the right of an eligible person to file a request to be substituted as the appellant for purposes of processing the claim to completion. Such request must be filed not later than one year after the date of the Veteran's death. See Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) (creating new 38 U.S.C. § 5121A, substitution in case of death of a claimant who dies on or after October 10, 2008). As provided for in this new provision, a person eligible for substitution will include "a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title ...." The Secretary has also issued regulations governing the rules and procedures for substitution upon death. An eligible party seeking substitution in an appeal that has been dismissed by the Board due to the death of the claimant should file a request for substitution with the VA regional office (RO) from which the claim originated (listed on the first page of this decision).
ORDER
The appeal is dismissed.
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Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs